10.4Privilege Against Self-Incrimination

Both the state and federal constitutions prohibit compelled self-incrimination in a criminal case. US Const, Am V (no person “shall be compelled in any criminal case to be a witness against himself [or herself]”); Const 1963, art 1, §17 (“[n]o person shall be compelled in any criminal case to be a witness against himself [or herself]”).¹ See also People v Hana, 443 Mich 202, 219, 225‐226 (1993) (privilege against self-incrimination applies to the adjudicative phase of a juvenile waiver hearing).

“The [Michigan constitutional] privilege against self-incrimination [also] applies to a civil proceeding at which evidence is sought which might subject the witness to criminal prosecution.” In re Stricklin, 148 Mich App 659, 664 (1986). See also People v Wyngaard, 462 Mich 659, 671-672 (2000) (“[the Fifth Amendment] prohibition [against compelled self-incrimination] ‘not only permits a person to refuse to testify against himself [or herself] at a criminal trial in which he [or she] is a defendant, but also ‘privileges him [or her] not to answer official questions put to him [or her] in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him [or her] in future criminal proceedings[]’”), quoting Minnesota v Murphy, 465 US 420, 426 (1984).

A.Assertion of Privilege Does Not Prevent All Testimony

Although the self-incrimination privilege applies in a civil proceeding, see Phillips v Deihm, 213 Mich App 389, 400 (1995), it does not protect a witness from answering a question unless doing so may incriminate him or her in a crime, see MCL 600.2154, which specifically provides:

“Any competent witness in a cause shall not be excused from answering a question relevant to the matter in issue, on the ground merely that the answer to such question may establish, or tend to establish, that such witness owes a debt, or is otherwise subject to a civil suit; but this provision shall not be construed to require a witness to give any answer which will have a tendency to accuse himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture, nor in any respect to vary or alter any other rule respecting the examination of witnesses.”

A witness in a civil suit must take the stand when called as a witness and may not invoke the privilege “‘until testimony sought to be elicited will in fact tend to incriminate.’” People v Ferency, 133 Mich App 526, 533-534 (1984), quoting Brown v United States, 356 US 148, 155 (1958). The trial judge must determine that the witness’s answer does not have a tendency to incriminate him or her before ordering the witness to respond. Ferency, 133 Mich App at 534. This inquiry should be conducted outside a jury’s presence. See In re Stricklin, 148 Mich App at 666.

B.Assertion of Privilege May Raise Adverse Inferences

“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the amendment does not preclude the inference where the privilege is claimed by a party to a civil cause. The privilege against self-incrimination under the Michigan Constitution is no more extensive than the privilege afforded by the Fifth Amendment of the United States Constitution.” Phillips, 213 Mich App at 400-401 (“because [the defendant] did not respond to [the] plaintiff’s evidence, the trial court did not violate [the defendant’s] privilege against self-incrimination in granting [the] plaintiff’s motion for summary disposition with respect to liability[]”).

C.Stay Civil Proceeding Pending Outcome of Criminal Proceeding

To protect a person’s privilege against self-incrimination, courts may stay civil proceedings pending the outcome of criminal proceedings. Landis v North American Co, 299 US 248, 254-255 (1936). A court has inherent authority to stay a proceeding pending the outcome of a separate action even though the parties to both proceedings are not the same. Id.